Booth v Kadir Kaya
[2020] FCA 764
•28 May 2020
FEDERAL COURT OF AUSTRALIA
Booth v Kadir Kaya [2020] FCA 764
File number: VID 298 of 2020 Judge: WHITE J Date of judgment: 28 May 2020 Catchwords: CRIMINAL LAW - application for the making of an Interim Control Order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether the person has been committed in Australia of an offence relating to terrorism, a terrorist organisation, or a terrorist act – whether the obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted – application granted. Legislation: Crimes Act 1914 (Cth) s 3
Criminal Code Act 1995 (Cth) ss 11.2A, 119.4(1), 104.1, 104.3, 104.4, 104.5
Date of hearing: 28 May 2020 Registry: Victoria Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Ms C Fitzgerald Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D Hallowes SC and Ms F Todd Solicitor for the Respondent: Galbally & O’Bryan Lawyers ORDERS
VID 298 of 2020 BETWEEN: SANDRA BOOTH
Applicant
AND: KADIR KAYA
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
28 MAY 2020
Endorsement pursuant to r 41.06 of the Federal Court Rules 2011 (Cth)
To: Kadir Kaya
You may be liable to imprisonment, sequestration of property or punishment for contempt if:
(a)for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or
(b) for an order that requires you not to do an act or thing - you disobey the order.
THE COURT NOTES THAT:
1.It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism, namely, the offence of preparing for incursion into a foreign country for the purpose of engaging in hostile activities, in contravention of ss 11.29 and 119.4(1) of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth).
2.It is satisfied on the balance of probabilities that the Respondent has provided support for or has otherwise facilitated the engagement in a hostile activity in a foreign country.
3.It is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:
a.protecting the public from a terrorist act;
b. preventing the provision of support for or the facilitation of a terrorist act; and
c.preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
4.The Order is directed to the Respondent, Kadir Kaya.
THE COURT ORDERS THAT:
1.The obligations, prohibitions and restrictions imposed on the Respondent by this Interim Control Order (ICO) are those set out in Schedule 1 to this order.
2.A summary of the grounds on which the order is made is set out in Schedule 2 to the order.
3.The ICO will begin to be in force when it is served personally on the Respondent.
4.If the ICO is confirmed, the confirmed control order is to be in force for 12 months from today’s date.
5.The Respondent may attend the Federal Court of Australia located in Commonwealth Law Courts at 305 William Street, Melbourne, Victoria or attend by way of video link at a date and time to be appointed by the Court at a Case Management Hearing for the purpose of the Court:
(a)confirming (with or without variation) the ICO;
(b)declaring that the ICO is void; or
(c)revoking the Interim Control Order.
6.The Respondent’s lawyer may attend the office of the Australian Federal Police in Melbourne at 383 La Trobe Street, Melbourne, Victoria between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this ICO.
7.The matter be adjourned to a Case Management Hearing at 3:30pm (AEST) on 15 June 2020 for the purpose of fixing a date and time for the confirmation hearing and for the making of directions with respect to that hearing.
8.Being satisfied that non-publication orders and suppression orders are appropriate in order to prevent prejudice to the proper administration of justice or to protect the safety of any person, until further order, there be no disclosure by publication or otherwise of:
(a)the residential address of the Respondent, as described in:
(i)paragraph [31] of the Affidavit of Sandra Booth dated 5 May 2020;
(ii)Control 1.1 in Annexure SB-01 to the Affidavit of Sandra Booth dated 5 May 2020; and
(iii)Control 1.1 of Schedule 1 to this Order.
(b)the names of the Respondent’s relatives located in Turkey whom he will not be prohibited from contacting, as described in:
(i)paragraph [55] of the Affidavit of Sandra Booth dated 5 May 2020;
(ii)Control 11.1(b) in Annexure SB-01 to the Affidavit of Sandra Booth dated 5 May 2020; and
(iii)Control 11.1(b) in Schedule 1 to this Order.
(c)the names and dates of birth of the persons other than the Respondent named in:
(i)Controls 11.1(d)(v) to 11.1(d)(ix) in Annexure SB-01 to the Affidavit of Sandra Booth dated 5 May 2020;
(ii)paragraphs [24], [26], [27], [31], [107.1], [107.3], [107.4], [107.5], [107.7] and [107.8]; footnotes 18, 19, 98, 99, 100, 103, 104 and 107; and Annexures E, F, FF, GG and II to Annexure SB-03 to the Affidavit of Sandra Booth dated 5 May 2020;
(iii)paragraphs [10.1], [10.2], [11] and [16.5] of Annexure SB-06 to the Affidavit of Sandra Booth dated 5 May 2020; and
(iv)Controls 11.1(d)(v) to 11.1(d)(ix) in Schedule 1 to this Order and paragraphs [9.1], [9.2], [10] and [15.5] of Schedule 2 to this order.
9.Subject to the following order, the whole of the two affidavits of Sandra Booth made on 5 May 2020 and filed on 6 May 2020 be confidential and accordingly not available for public inspection.
10.The Applicant is by 4:30pm on 29 May 2020 to file and serve a copy of the affidavit made by Ms Booth on 5 May 2020 but with the material identified in Order 8 as subject to non-publication and non-disclosure redacted and a copy of the affidavit in that redacted form be available for public inspection.
11.Orders 8 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:
(a)the presiding judge and necessary staff of this Court;
(b)officers and employees of agencies which are members of the Joint Counter Terrorism Team, and legal representatives of those agencies;
(c)the respondent and his legal representatives;
(d)Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).
12.There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE 1
Control 1
1.1. You are required to remain at [REDACTED], in the State of Victoria, or other such premises:
a.nominated by you within 24 hours from the time that this Interim Control Order comes into force; and
b.approved in writing by an AFP Superintendent
(the specified premises),
between the hours of 12:00 am and 6:00 am local time each day (the curfew period) from the day on which this Interim Control Order comes into force until the day that it ceases to be in force.
1.2. You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.
Control 2
2.1. During such a time as non-essential movement outdoors is restricted as a consequence of the COVID-19 pandemic, you are required to report to a police officer by Skype each week on Monday and Thursday between 7.00 am and 7.00 pm local time.
2.2. When Victoria Police Policy ceases to restrict in person reporting at police stations due to COVID-19, you are required to report to a police officer every Monday and Thursday between 7.00 am and 7.00 pm local time at Melton Police Station, 243 Station Road, Melton, Victoria.
2.3. The AFP is to provide you with no less than 3 days written notice of the first occasion when Control 2.2 will take effect, after which time you are required to report in accordance with that control, unless notified in writing by the AFP that Control 2.1 has been reinstituted if COVID19 restrictions on movement are reintroduced.
Control 3
3.1. You are prohibited from being at any of the following areas
a.within the exclusion zone set out in Annexure 1 at Melbourne International Airport (Tullamarine);
b.within the exclusion zone set out in Annexure 2 at Avalon Airport;
c.within the exclusion zone set out in Annexure 3 at Moorabbin Airport;
d.within the exclusion zone set out in Annexure 4 at Essendon Fields Airport;
e.within the exclusion zone set out in Annexure 5 at Port Melbourne;
f.within 1 km of any Australian airport (besides Melbourne Tullamarine Airport, Avalon Airport, Moorabbin Airport, and Essendon Fields Airport which are addressed in Controls 3.1.a, 3.1.b, 3.1.c and 3.1.d) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
g.within 1 km of any Australian port (besides Port Melbourne, which is addressed in Control 3.1.e) that has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
h.inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
i.at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating;
j.any place in Australia outside the state of Victoria, unless:
i.you contact an AFP Superintendent in writing requesting approval to travel in Australia, outside the state of Victoria, for a specific period of time; and
ii.an AFP Superintendent consents to the proposed travel in writing.
Control 4
4.1. You are prohibited from leaving Australia.
Control 5
5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, produce, store or distribute documents (including documents in electronic form) or electronic media, which relate to any of the following:
a.explosives, explosive devices, initiation systems or firing devices;
b.firearms, ammunition or knives;
c.anti-surveillance or counter surveillance.
unless that material is:
d.published by a ‘constituent body’ of the Australian Press Council;
e.broadcast on Australian free to air television;
f.broadcast on Australian pay television;
g.shown in a commercial movie cinema;
h.broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand’; or
i.served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
Control 6
6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, produce, store or distribute documents (including documents in electronic form) or electronic media, depicting or describing any:
a.execution;
b.beheading;
c.suicide attack;
d.bombing;
e.terrorist attack;
f.propaganda and promotional material for a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
g.activities of, or associated with, a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),
unless that material is:
h.published by a ‘constituent body’ of the Australian Press Council; or
i.broadcast on Australian free to air television;
j.on Australian pay television;
k.shown in a commercial movie cinema;
l.on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand; or
m.served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
Control 7
7.1. You are prohibited from the following specified activities (including in respect of your work occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to:
a.explosives, explosive devices, initiation systems or firing devices;
b.firearms, ammunition or knives;
c.anti-surveillance or counter surveillance;
d.execution;
e.beheading;
f.suicide attack;
g.bombing;
h.terrorist attack;
i.Islamic State;
j.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth);
k.activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
Control 8
8.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.
Control 9
9.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: undertaking paid work without first notifying the AFP Superintendent in writing.
9.2. In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, including details of the person for whom you will be undertaking the work (eg the employer), including their name and place of business, and the nature of the work that will be undertaken.
Control 10
10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
a.firearms or cartridge ammunition within the meaning of s 3(1) of the Firearms Act 1996 (Vic);
b.a ‘prohibited weapon’ within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);
c.any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1;
d.any quantity of any chemical which is not consistent with reasonable domestic use;
e.an article or device, not being a firearm, capable of discharging by any means:
i.any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or
ii.any substance capable of causing bodily harm;
except for reasonable domestic use;
f.a detonator;
g.a fuse capable of use with an explosive or a detonator;
h.a knife, in a public place, without reasonable excuse;
i.anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
Control 11
11.1. You are prohibited from communicating or voluntarily associating with:
a.any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;
b.any person located in Turkey save and except the following persons subject to the provision of the phone numbers, addresses and dates of birth of those persons to the AFP Superintendent:
i.[REDACTED];
ii.[REDACTED];
iii.[REDACTED];
iv.[REDACTED];
v.[REDACTED];
c.any person located in Iraq, Syria or the Philippines;
d.any of the following specified individuals:
i.Paul DACRE (Date of birth: 6 July 1985);
ii.Antonino GRANATA (Date of birth: 10 November 1990);
iii.Shayden THORNE (Date of birth: 3 February 1988);
iv.Robert CERANTONIO (Date of birth: 28 January 1985);
v.[REDACTED];
vi.[REDACTED];
vii.[REDACTED];
viii.[REDACTED];
ix.[REDACTED];
Control 12
12.1. You are prohibited from accessing or using, any mobile telephone device and SIM card other than a single mobile telephone device and SIM card provided by the AFP (permitted mobile phone) for your use at any one time, and your use of such a permitted mobile phone is subject to the following conditions:
a.prior to using a permitted mobile phone an AFP Superintendent will provide you with the following information in writing: the International Mobile Equipment Identity number for a permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with a permitted mobile phone, the telecommunication service provider which you will use with a permitted mobile phone, the password for a permitted mobile phone and the phone number to which a permitted mobile phone will be connected;
b.you must not tamper with, damage or destroy any component of a permitted mobile phone or any equipment necessary for the operation of a permitted mobile phone, or cause or permit another person to do any of those things;
c.at any time a police officer from the AFP or Victoria Police requests, you must present a permitted mobile phone for inspection, repair, service or replacement as required;
d.you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to a permitted mobile phone; and
e.if you change the password for a permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent’s direction, if you are requested to do so by an AFP Superintendent or that police officer.
f.if you become aware that the permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order—notify an AFP member as soon as practicable, but no later than 12 hours, after becoming so aware.
12.2. You are prohibited from causing or permitting another person to use or access a permitted mobile phone.
12.3. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.
Control 13
13.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any fixed or landline telephone service other than a single service that has been approved in writing by an AFP Superintendent for you to access or use at any one time.
13.2. To seek approval, you must:
a.submit a written request to an AFP Superintendent which nominates a fixed or landline telephone service; and
b.provide an AFP Superintendent with sufficient detail and any information requested by an AFP Superintendent for the purpose of identifying a fixed or landline telephone service that you will be accessing or using.
Control 14
14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any public telephone except in the case of an emergency, provided that you contact an AFP Superintendent as soon as possible after accessing or using such a public telephone and:
a.provide sufficient detail to an AFP Superintendent to identify the public telephone that you accessed or used, and the date, time and phone number called; and
b.you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.
Control 15
15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.
Control 16
16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be:
a.FaceTime
b.WhatsApp
c.Viber
d.Telegram
e.Facebook Messenger
f.Snapchat
g.KIK
h.iCall
i.WeTalk
j.Lync2013
k.Nimbuzz Messenger
l.Whistle Phone
m.Talkatone
n.Discord
o.Google Duo
p.MagicApp
q.Signal Private Messenger
r.Zoiper IAX SIP VOIP Softphone
s.Beejive
t.Fring
u.JaJah
v.Line2
w.Talkatone
x. Truphone
y.Twitter
z.Yahoo
aa.ICQ
bb.Google Talk
cc.MSN Messenger
dd.AIM
ee.Yahoo Messenger
ff.Packet8
gg.Google Hangouts
hh.TikTok
ii.Wickr, and
jj.Zoom.
16.2. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any gaming applications or software that connects to other users or servers, via the internet or Local Area Network (LAN).
16.3. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, Skype, except for the following purposes, and subject to the requirements in Controls 16.4, 16.5 and 16.6:
a.contacting your legal representatives to obtain legal advice, and/ or contacting other professionals who may be required to do an online assessment of you for legal purposes;
b.contacting a police officer for the purpose of reporting in accordance with Control 2;
c.contacting any other person approved in writing by an AFP Superintendent.
16.4. At least 24 hours prior to accessing or using Skype for the purposes of contacting your legal representative or other person in accordance with Control 16.3, you must provide to an AFP Superintendent:
a.the username and password for the Skype account you will be using to make that contact, unless you have previously provided the username and password you will be using to make that contact to an AFP Superintendent in compliance with Control 16.3 and that username and password have not changed.
b.the Skype username of the person you will be contacting, unless you have previously provided the Skype username of the person you will be contacting to an AFP Superintendent in compliance with Control 16.3 and that username has not changed.
16.5. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware.
16.6. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service, including any software, mobile application or hardware.
16.7. Controls 16.1 to 16.6 do not prohibit access to or use of a website which includes an ‘instant chat’ function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service.
16.8. You are permitted to access Facebook and Instagram (whether accessed through a website or an application) on the permitted mobile phone.
Control 17
17.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet service other than:
a.a single service that has been approved in writing by an AFP Superintendent for you to access or use at any one time (permitted internet service); and
b.a television connected to an internet service at the specified premises, subject to all of the existing Controls.
17.2. You are prohibited from allowing any other person to access or use a permitted internet service.
17.3. You are prohibited from causing any other person to access or use on your behalf any other internet service.
17.4. You are prohibited from:
a.using a virtual private network (VPN) service;
b.using the TOR network; and
c.accessing any Darknet services (denoted by “onion” top level domain suffix).
Control 18
18.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any electronic mail (email) account other than a single account that has been approved in writing by an AFP Superintendent for you to access or use at any one time (the permitted email account).
18.2. To seek approval of an AFP Superintendent you must submit a written request and:
a.nominate the email account; and
b.provide any other information requested by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using’.
18.3. You are prohibited from causing or permitting another person to use or access a permitted email account.
Control 19
19.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any computer other than a single computer that has been provided to you by the AFP for you to access and use at any one time (permitted computer) and your use of a permitted computer is subject to the following condition:
a.if you change the password for a permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
b.at any time a police officer from the AFP or Victoria Police requests, you must present a permitted computer for inspection, repair, service or replacement as required.
19.2. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device other than a single tablet device that has been approved in writing by an AFP Superintendent for you to access or use at any one time (permitted tablet device) and your use of a permitted tablet device is subject to the following conditions:
a.before using a permitted tablet device, you must provide the password for a permitted tablet device to the AFP Superintendent; and
b.if you change the password for a permitted tablet device, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
19.3. To request approval under Control 19.2 you must:
a.submit a written request to the AFP Superintendent which nominates the tablet device; and
b.provide any information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of identifying and accessing, the nominated tablet device.
19.4. You are permitted to access Facebook and Instagram (whether accessed through a website or an application) on the permitted computer.
Control 20
20.1. You are required to consider in good faith participating in counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes per week.
20.2. If you agree to participate in such counselling or education you must advise the AFP Superintendent in writing that you have commenced the counselling or education and provide the AFP Superintendent the name and qualifications of the professional you have engaged.
Exemption requested by you
21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 2, 3.1, 11.1.b.
21.2. To request an exemption, you must:
a.submit a written request to the AFP Superintendent which: (i) identifies the Control in respect of which you seek an exemption; (ii) explains the extent to which you seek to be exempted from the Control; and (iii) explains your reason(s) for seeking the exemption; and
b.provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.
21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing.
21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
21.5. A request for an exemption in respect of Controls 1.1 or 2 or 11.1b must be made three business days before the material time and date.
21.6. A request for an exemption in respect of Control 3.1 must be made seven business days before the material time and date.
21.7. If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
Exemption granted by the AFP without a request from you
22.1. An AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Controls with your consent.
22.2. The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.
22.3. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
Interpretation
23.1. In this Interim Control Order:
a.AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism portfolio.
b.Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
c.Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ within the meaning of the Victoria Police Act 2013 (Vic).
d.Material time and date means:
i. in relation to a request for an exemption to the requirement in Control 1.1 ¾ the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods);
ii. in relation to a request for an exemption to the requirement in Control 2 ¾ before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);
iii. in relation to a request for an exemption to the requirement in Control 3.1 ¾ the time and date at which you wish to be in the prohibited area and/or time and date at which you wish to depart Victoria;
iv. in relation to a request for an exemption to the requirement in Control 11.1.b¾ the time and date at which you wish to communicate with a person located in Turkey.
Annexure 1
Annexure 2
Annexure 3
Annexure 4
Annexure 5
SCHEDULE 2
SUMMARY OF THE GROUNDS ON WHICH THE ORDER IS MADE
Offence relating to terrorism
On 22 February 2019, following a plea of guilty on 12 December 2018, Mr Kadir Kaya was convicted of an offence of preparing for incursions into foreign countries for the purpose of engaging in hostile activities, contrary to ss 11.2A and 119.4(1) of the Criminal Code 1995 (Cth).[1] That is an offence relating to terrorism.
[1]SOF [4].
Mr Kaya was sentenced to four years’ imprisonment, with a non-parole period of three years in the Supreme Court of Victoria. Mr Kaya has been refused parole, and his period of imprisonment expires on 8 May 2020.[2]
[2]SOF [10] – [11].
Overview of Ongoing risk factors
By reason of the following matters, Mr Kaya presents an ongoing risk of committing, supporting or facilitating a terrorist act in Australia or overseas; or committing, supporting or facilitating engagement in a hostile activity in a foreign country:
3.1the nature and circumstances of, and background to, Mr Kaya’s offending and the extreme ideology that he held at that time, including:
3.1.1his attempt (by agreement with his co-offenders) to travel to the Southern Philippines (where a number of Islamist militant groups operated) with the intention of his co-offender Mr Cerantonio engaging in hostile activity, despite the Minister’s refusal to re-issue his passport on 25 February 2015;
3.1.2his security awareness, demonstrated during the course of the investigation;
3.1.3demonstrated support for Islamic State and extremist ideology supportive of violence; and
3.1.4his susceptibility to others who espouse extremist ideology as demonstrated by his susceptibility to the influence of Mr Robert Cerantonio;
3.2 His behaviour whilst and in custody, including:
3.2.1 Some indications of a display of extremist ideology;
3.2.2Continued association with persons of security concern in view of his susceptibility to influence.
Nature and circumstances of, and background to, his offending
The nature and circumstances surrounding Mr Kaya’s offending included:
4.1Persistent attempts to travel offshore:
4.1.1.On 21 September 2015, after the Minister for Foreign Affairs refused to re-issue Mr Kaya's Australian Passport, Mr Kaya, having booked a one-way flight to Turkey, attempted to travel out of Australia from Melbourne International Airport using his Turkish passport. He was prevented from doing so because Australian Border Force officers impounded his Turkish passport pursuant to a direction of the Minister for Foreign Affairs ordering the surrender of his foreign passport.[3].
[3]SOF [43].
4.1.2.Following his being prevented from leaving Australia by plane, he entered into an agreement with his co-offenders to acquire a boat and other equipment in preparation for leaving Australia to enter the Southern Philippines for the purpose of his co-offender Mr Cerantonio engaging in hostile activity.
4.1.3.On 8 May 2016, Mr Kaya applied for and received a $500 advance payment of his Newstart allowance.[4] It can be inferred that he did so in anticipation of leaving Australia.
[4]SOF [84].
4.1.4.Mr Kaya intended to travel offshore with his family and co-offenders in the MV Rushcutter if it had been assessed as suitable for purchase by his co-offenders Mr Murat Kaya and Mr Dacre.
4.1.5.On 25 February 2016 Mr Kaya met with the co-offenders following Mr Murat Kaya and Mr Dacre’s return from Darwin, where they had travelled for the purposes of purchasing a boat to travel to the Philippines (although they did not purchase that particular boat).[5]
[5]SOF [73].
4.1.6.Between 6 May 2016 and 10 May 2016, Mr Kaya travelled with his co-offenders (other than Mr Murat Kaya) to Cape York in Queensland with a boat purchased in the name of Mr Dacre with the intention of travelling out of Australia to the Philippines.[6] He was subsequently arrested on 10 May 2016.[7]
[6]SOF [86].
[7]SOF [87].
4.2 Security awareness
4.2.1Mr Kaya behaved consistently with the avoidance of detection by law enforcement during the period of offending, in that he:
a.used a system of codes with his co-offenders to mislead any attempts at electronic surveillance of their communications;[8]
[8]SOF [63] – [64].
b.used guarded or deliberately obfuscating language to refer to his plan to leave the country in telephone calls referring to it as “the thing” that he was planning being “on its way”.[9]
[9]SOF [24] – [25].
c.whilst being interviewed by Dr Doroc he reported being aware their phones were likely tapped and for this reason they only had minimal conversations about the plan to leave.[10]
[10]Annexure B to the SOFN - , ‘Violent Extremism Assessment and Recommendations Report’ dated 3 April 2019, page 6.
4.3 Demonstrated support for Islamic State and extremist ideology:
4.3.1Islamic State follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its extreme interpretations. Islamic State has a goal of ‘global jihad’ and has exhorted followers to kill disbelievers. Islamic State inspires, encourages, enables and directs terrorist attacks internationally.[11]
[11]SOF [13] – [14].
4.3.2On 17 July 2015, Mr Kaya and his co-offenders attended an organised meeting at Footscray Park, at which ISIS flags were flown by the co-offenders, and they each raised their index fingers (sometimes known as the ‘shahada finger’) in the ‘tawheed salute’ which has come to be used as a widely recognized symbol of support for Islamic State.[12]
[12]SOF [29] – [33].
4.3.3On 25 August 2015, Mr Kaya commented on a post by Mr Thorne on Telegram chat group ‘Al Ghurabaa” which linked to an article about Sheikh Nassir Al-Fahad pledging allegiance to ISIS, with apparent endorsement of the Sheikh’s actions. Mr Kaya posted ‘What a gun he has courage to do that’.[13]
[13]SOF [34] – [35].
4.3.4On 15 October 2015, in his interview with Neil Mitchell from radio station 3AW, Mr Kaya indicated that he hated Australia and did not respect Australian foreign policy or other Australian values. Mr Kaya denied that he would fight for ISIS if he was permitted to travel to Turkey, however he was at a loss to explain why he would join the Turkish military, who were fighting ISIS, whilst rejecting the Australian government’s position on fighting against ISIS.[14]
[14]SOF [47] - [50].
4.3.5On 10 April 2016 Mr Kaya responded in a manner suggesting endorsement of a post by Mr Dacre on Telegram chat group Al Ghuraba. Mr Dacre’s post related to a violent incident in which a prison inmate carved an Islamic State inspired message into his cell mate’s forehead. Mr Dacre posted ‘Did you hear about the brother in jail who bashed an ex soldier’. And ‘In Sydney, 18 year old 'Isis supporter' went into a prison cell of an ex digger and smashed him so hard he's in an induced coma…. He inscribed E4E on his forehead. I assume this means eye for an eye.’ Mr Kaya responds ‘Allahu akbar’. The phrase ‘allahu akbar’ means ‘god is the greatest’.[15]
[15]SOF [40] – [42].
4.3.6Mr Kaya was sentenced by Justice Croucher on the basis that he adhered to an ideology of Islamic extremism and was supportive of Islamic State and that this motivated his criminal offending.[16]
[16]Annexure A to the SOF - Sentencing Remarks of HH Justice Croucher dated 3 May 2019 at [99].
4.4 Susceptibility to the influence of Mr Cerantonio:
4.4.1From at least 22 October 2015, Mr Kaya was closely associated with Mr Cerantonio whom he looked to for religious guidance and leadership. Mr Cerantonio was the person to whom Mr Kaya and his co-offenders turned for leadership and religious and spiritual guidance. He enhanced or persuaded Mr Kaya towards extremist ideas. Mr Certanonio advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines and Mr Kaya was found by Justice Croucher to have supported Mr Cerantonio’s advocacy for that result.[17]
[17]SOF [18]. R v Cerantonio [2019] VSC 284 at [19].
Behaviour whilst in custody
Continued display of extremist ideology
There is evidence to indicate that he has:
5.1.Mr Kaya’s continued association with his co-offenders Mr Dacre and Mr Granata whilst in custody in a context demonstrating continued support of extremist views is indicated by the apparent celebration of the terrorist attacks which took place in France in July 2016 with these co-offenders.[18]
[18]SOF [91] – [92] and [96].
5.2.Mr Kaya’s continued support of extremist ideologies is also evidenced by apparent amusement and support of terrorist attacks in London in March 2017.[19]
[19]SOF [100].
5.3.Writings located in Mr Kaya’s cell on 22 April 2017 contain derogatory references to non-Muslims leaders of the world as ‘filthy kuffar’, references to the ‘beloved Shayk’ Jibreel (a radical Islamic preacher) and speak of ‘us being in here’ (an apparent reference to Mr Kaya being in prison) being persons ‘on the side of victory’ and of history never being on the side of ‘the oppressors’.[20]
[20]SOF [102].
Continued communication with persons of security concern in view of his susceptibility to influence
As noted in the SOF [20] and above, Mr Kaya was influenced by Mr Cerantonio and adopted his advocated support for the establishment of an Islamic State under Sharia law in the Southern Philippines. This susceptibility to such influence increases the risk that Mr Kaya may pose to the community.
During his time in custody, Mr Kaya has associated with the following individuals charged with or convicted of terrorist offences:
7.1.His co-offenders: Paul Dacre and Antonio Granata.[21]
[21]SOF [91] – [92] and [96].
7.2.Sevdet Ramadan Besim who is currently serving 14 years’ imprisonment with a non-parole period of 10 years and 6 months for an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) for preparation for an attack which involved striking a police officer with a car, beheading that officer and then using the officer’s weapon to commit further acts of violence on Anzac Day in 2015. [22]
[22]The Queen v Besim [2016] VSC 537; DPP (Cth) v Besim [2017] VSCA 158 (Crown appeal on sentence upheld) and SOF [100] and [107.2].
7.3.Hatim Moukhaiber Hatim Moukhaiber who was sentenced to a 16 year sentence of imprisonment with a non-parole period of 12 years for an offence of engaging in a terrorist act contrary to s 101.1(1) of the Criminal Code 1995 (Cth).
Mr Kaya’s desire to maintain contact with others convicted of terrorist offences while himself imprisoned for a similar offence increases the risk that he will seek out similar associations of security concern upon release into the community and that he is sympathetic to the view/ideology of such persons and remains susceptible to the influence of persons who hold such beliefs.
During his time in custody, Mr Kaya has also associated with the following persons who are individuals of security concern being individuals whose passports have been cancelled due to security concerns assessed by ASIO:
9.1.[REDACTED];[23]
[23][REDACTED].
9.2.[REDACTED];[24]
[24][REDACTED].
9.3.Hatim Moukhaiber.[25]
[25]SOF [107.6].
He has also associated with [REDACTED] and [REDACTED], who can each be seen in photographs, with Mr Thorne, displaying the ‘shahada finger’. In one such photograph featuring [REDACTED]and [REDACTED], they are among a group of men posing with the ISIS flag.[26]
[26]SOF [107.4] and [107.5].
Overall assessment of risk
In view of the matters outlined above, there is a risk that in the absence of appropriate controls, Mr Kaya may commit, support or facilitate a terrorist act in Australia or overseas or support or facilitate the engagement in a hostile activity in a foreign country.
While Mr Kaya has not professed a desire to commit, support or facilitate a terrorist act in Australia (which the AFP acknowledged is supported by the second VERA and the ASIO Minute), there is some risk that this may eventuate. Despite his recent statements in support of less rigid religious views, he has never abandoned an adherence to violence extremism and there are indications his recent statements should be treated with a degree of caution. The AFP’s experience in recent years is that as more and more Islamic extremists are prevented from travelling to foreign conflict zones, the risk of those persons shifting their focus to domestic terrorist acts increases. Examples of such occurrences in Australia are as follows:
12.1.Sevdet Ramadan Besim wished to fight for the Islamic State. However, in December 2014 he was advised that his passport application was under review and that a recommendation may be made against its issue. He instead undertook acts in preparation for an attack, which was to involve hitting a police officer with his car and beheading that officer with a knife, on Anzac Day in 2015. He pleaded guilty and was sentenced in September 2016.[27]
[27]The Queen v Besim [2016] VSC 537; DPP (Cth) v Besim [2017] VSCA 158 (Crown appeal on sentence upheld).
12.2.Abdullah Chaarani and Ahmed Mohamed, had their passports cancelled in 2015. They subsequently undertook acts in preparation for a terrorist act together with Hamza Abbas, intended to be carried out in Melbourne’s central business district over the Christmas period in 2016, for which they were convicted in 2018. These preparations were motivated by support for Islamic State. They were sentenced in November 2019.[28] In May 2019, Chaarani and Mohamed were also found guilty of a separate terrorist act – namely, the burning of a Shia Mosque in Melbourne in December 2016. They were sentenced in July 2019.[29]
[28]The Queen v Abbas & Others [2019] VSC 775.
[29]R v Mohamed & Others [2019] VSC 498.
12.3.Hassan Khalif Shire Ali had his passport cancelled in 2015. On 9 November 2018, he carried out a terrorist attack in Bourke Street, Melbourne, which included him setting fire to a vehicle and stabbing three people, one of whom died from his injuries. The Islamic State has claimed responsibility for this attack online.
12.4.Milad Atai’s request to renew his Australian passport was refused in 2014. In November 2018 he was convicted of aiding and abetting a terrorist act, being the fatal shooting of Curtis Cheng outside New South Wales Police Headquarters and offences relating to being a member of Islamic State and the organisation of funding and support for Islamic State.[30] Atai was part of an online ‘WhatsApp’ closed chat group where he and others shared views and discussed ideas supportive of Salafi Islam and the Islamic State.
[30]R v Atai (No 2) [2018] NSWSC 1797.
12.5.Agim Kruezi intended to travel to Syria in 2014 to join in the fight against the Assad regime. Following the cancellation of his passport in 2014, he instead used the money set aside for his trip to Syria to plan an attack on Australian soil in a public place with the intention to die as a martyr in that attack. In doing so, he contemplated attracting and attacking law enforcement officers. He was subsequently convicted of making acts of preparation for a terrorist attack and making preparatory acts for incursion into a foreign state.[31]
[31] R v Agim Kruezi, unreported, Supreme Court of Queensland, 31 July 2018.
12.6.Omarjan Azari’s passport was cancelled in 2013. He was subsequently convicted of offences of attempting to make funds available to Islamic State and committing an act in preparation for or planning a terrorist act.[32] The latter conviction related to a phone conversation during which he discussed a plan for a future terrorist act or acts to be committed in Australia, namely the killing of random members of the public, with a senior Australian figure in Islamic State who was in Syria or Iraq at that time.
[32]R v Azari (No 12) [2019] NSWSC 314.
12.7.On 23 September 2014, the day after he had been advised that his passport had been cancelled, Ahmad Numan Haider stabbed two Joint Counter Terrorism Taskforce police officers outside of a Melbourne police station. Haider was killed by police acting in self-defence. In the period leading up to the attack, Haider had been accessing websites inciting jihad and martyrdom, graphic materials of executions and beheadings and recruitment propaganda for Islamic State.
12.8.In 2016, Mohammed Kiad and Omar Al-Kutobi were convicted of conspiring to commit acts in preparation for or planning a terrorist attack. One feature of the intended attack was the detonation of an improvised explosive device to damage or destroy a building. At the time, Al-Kutobi was unable to travel as he did not yet qualify for an Australian passport. Kiad and Al-Kutobi were supporters of Islamic State and had conducted extensive internet research on Islamic State ideology, weapons and improvised explosive devices.[33]
[33]R v Al-Kutobi; R v Kiad [2016] NSWSC 1760.
12.9.In February 2016, Tamim Khaja was intercepted as he attempted to travel to Syria, resulting in the cancellation of his passport in March 2016. In May 2016, he undertook various acts in preparation for or for the planning of a terrorist act, including conducting reconnaissance of army barracks in western Sydney and court buildings in Parramatta for the purpose of carrying out an attack with firearms and explosives. Khaja advised undercover operatives that he intended to kill as many non-Muslims as he could prior to being killed himself.[34]
[34]R v Khaja (No 5) [2018] NSWSC 238.
These acts are consistent with directions given by Islamic State known as ‘Hijrah’ to its supporters to kill non-Muslims in Western countries.[35] In recent years, Islamic State has exploited social media to recruit, motivate and radicalise individuals – including within Australia. A recurring theme of the recent online propaganda is that the West is at war with Islam and terror attacks in the West are permissible. There is accordingly a greater emphasis on local sympathisers to act domestically. The primary terrorist threat in Australia therefore arises from a small number of Islamic extremists, principally lone actors or small groups. Single offender attacks are more likely to go undetected and require less planning and resourcing to carry out in a very short period of time.
[35]SOF [13], [14].
The obligations, prohibitions and restrictions set out in the proposed interim control orders are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing a terrorist attack, preventing the provision of support for or the facilitation of a terrorist attack here or abroad and preventing the provision of support for or facilitation of the engagement in hostile activity in a foreign country. They will ensure that Mr Kaya:
14.1.is provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education),
14.2.is capable of being monitored by police during his re-engagement with the community, and
14.3.is prohibited from engaging in behaviours, and being exposed to influences, which may lead him to commit a terrorist act or provide support for or facilitate a terrorist act here or abroad or the engagement in hostile activity in a foreign country,
and thereby reduce the risks outlined above.
The interim control orders are made notwithstanding the matters set out in the SOFN, for the following reasons:
15.1.Statements made by Mr Kaya to Dr Doroc:
15.1.1.strongly denying he ever supported violent extremist ideologies or any violent extremist groups such as ISIS;
15.1.2.reporting that the primary motivation for his offending was to go and live in a Muslim dominant country where he would be more accepted and could practice his religion freely;
15.1.3.indicating that he strongly condemned terrorist attacks such as suicide bombings;
15.2.are inconsistent with his plea of guilty and with the findings of Justice Croucher. They are also in contradistinction to a number of Mr Kaya’s comments on social media around the time of his offending and with reports of Mr Kaya’s involvement in celebrating the Bastille Day terror attacks and the London terror attacks whilst in custody and with writings found in Mr Kaya’s cell identifying the authorities as ‘oppressors’ and as ‘filthy Kuffar’. Mr Kaya’s assertions to Dr Doroc indicate a lack of contrition and insight by Mr Kaya into his offending conduct and suggest that Mr Kaya’s assertion that he holds more moderate views must be treated with a high degree of caution. This is so particularly given these statements by Mr Kaya were made at a time when it served Mr Kaya’s interest to diminish and distance himself from his offending (namely, proximate to the determination of his application for parole) and were repeated to Dr Doroc during his April 2020 assessment.
15.3.Mr Kaya’s statements to Dr Doroc that none in his immediate family holds extremist beliefs or supports the use of violent extremism also should be treated with caution. Murat Kaya was Mr Kaya’s co-offender while Mr Kaya’s father, Haciduran Kaya, has been identified as a person of security concern having had his passport cancelled, having attended Cerantonio’s sermons with his sons and provided financial support to his sons in the commission of the offence. At the very least it is not at all clear that Mr Kaya’s father and brother are likely to be strong moderating influences with respect to his ideology.
15.4.Whilst Dr Doroc most recently assessed Mr Kaya’s overall risk and his current intent to commit a violent extremist act as low, Dr Doroc also notes that:
15.4.1.The most likely risk scenario for Mr Kaya remains that he may become susceptible to the influence of others who hold extremist views in the context of feeling alienated, overwhelmed, and as though he does not belong in Australia due to his religious beliefs, which could result in Mr Kaya re-adopting extreme views about Australia and the West being enemies of Islam, and escalate to developing an extreme ideology supportive of violent extremist behaviour;
15.4.2.Mr Kaya has a history of alienating himself from prosocial individuals and although he has indicated he has no intention to have contact with negative peers in the future he would benefit from strategies as to how he might avoid these peers and maintain positive prosocial engagements in the community. Dr Doroc noted that any restrictions placed on Mr Kaya preventing him from associating with other extremists or organisations that promote extremist attitudes and behaviours would assist to mitigate these risks;
15.4.3.Mr Kaya’s skills and capacity to cooperate with others and acquire funds and material to engage in offending behaviour remains unchanged and contributes to his risk of violent extremism;
15.4.4.Mr Kaya’s incarceration has meant that he has been unable to demonstrate whether he can transfer his positive behaviour in prison to a community setting.
15.5.While Mr Kaya has expressed a desire to cease contact with negative peers in the future, this must be viewed with some caution given a conversation he had with [REDACTED] showing an apparent intention to continue associating with him and Mr Kaya’s interest in ‘the boys’ who [REDACTED] notes half of them ‘are in prison’.
15.6.Mr Kaya’s statement to his CISP mentors that he was abusing illicit substances at the time of his offending conflicts with his statement to Dr Doroc in April 2019 that he went ‘cold turkey’ from cannabis within the first week of turning to religion and commencing prayer. This statement appears to indicate that Mr Kaya is prepared to make statements to deflect responsibility for and diminish his offending and demonstrates Mr Kaya’s preparedness to make self-serving statements.
15.7.The existence of security concerns in relation to a number of Mr Kaya’s immediate family is also significant given Mr Kaya has demonstrated, through his offending, a susceptibility to the influence of others and because of Dr Doroc’s conclusion that a likely risk scenario for Mr Kaya may be one which follows his previous offending trajectory.
15.8.While an Operational Threat Assessment (OTA) assessed that Mr Kaya ‘unlikely … has the confidence to pursue foreign incursion’ or ‘resources to depart Australia’, it assessed him as having likely maintained the knowledge and desire to travel offshore for the purposes of foreign incursion. Mr Kaya has in the past been susceptible to the influence of others and has continued to be in contact with persons of security concern while in custody. There is a risk that he would support those who do engage in violence or support acts of violence, or be influenced by persons to commit violent acts himself, including overseas.
15.9.Although there has been little negative reporting relating to Mr Kaya’s behaviour in custody in 2019 and 2020 there are suggestions (as noted above) that this may be a result of Mr Kaya’s desire to be perceived to hold more moderate views at least in part to prevent further adverse attention impacting future parole applications. Notwithstanding the absence of negative reports in 2019 and 2020, the Court ought to approach Mr Kaya’s statements to Dr Doroc and parole authorities with caution given his adherence to extreme ideologies over a number of years, and continued associations and behaviours in custody.
15.10.The Australian Security Intelligence Organisation (ASIO) assessed Mr Kaya is unlikely to currently adhere to an Islamist extremist ideology supportive of politically motivated violence and assessed it is unlikely he intends to engage in, support or facilitate politically motivated violence or other activities of security concern.[36] However, that assessment should be considered in view of ASIO’s observations that:
[36]SOFN [24]-[28].
15.10.1.An individual who has overtly disengaged may still adhere to a radical ideology and believe the use of violence is justified for political objectives. Their beliefs leave them susceptible to re-engaging in the use or support of violence, particularly if they are again exposed to factors that led to their radicalisation; and
15.10.2.Noting there is limited available reporting, it remains possible that Mr Kaya has engaged in behaviours designed to avoid authorities’ attention.
15.11.The AFP considers that Mr Kaya’s appearance of changed beliefs may not be reflective of his true views.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
This judgment concerns an application for an Interim Control Order (ICO) in relation to Kadir Kaya, pursuant to s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).
On 22 February 2019, Mr Kaya was sentenced in the Supreme Court of Victoria for the offence of preparing for incursions into a foreign country for the purpose of engaging in hostile activities in contravention of ss 11.2A and 119.4(1) of the Criminal Code. He was sentenced to imprisonment for four years (after allowance for his plea of guilty) and a non-parole period of three years was fixed. As Mr Kaya had been in custody since his arrest on 10 May 2016, the term of his imprisonment has expired. He was released from custody on 8 May 2020.
Mr Kaya committed the offence with five others. The Crown’s case was that between 22 October 2015 and 10 May 2016 the group had agreed to, and did, engage in conduct in Australia preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the Government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement was to enable the Southern Philippines ultimately to be governed by Islamic law, sometimes known as Sharia law. Their plan was that one of the group, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out action directed at achieving, by force or violence, the overthrow of the Government of the Southern Philippines. The Crown alleged that it was only Mr Cerantonio who was to be actually involved in the encouragement of others to attempt that overthrow but there was no firm plan as to how Mr Cerantonio was to achieve that goal.
By reason of the cancellation of passports or the refusal of the Australian Government to issue or reissue passports, none of the group was able to leave Australia lawfully. In that circumstance, they agreed to acquire a boat and depart from Australia in Northern Queensland by covert means so as to travel to the Philippines.
Unknown to the group, their activities had been closely monitored by the Australian Federal Police (AFP), and the members of the group other than the applicant’s brother (Murat Kaya) were arrested in Northern Queensland before they were able to leave Australia. The sentencing Judge, Croucher J in the Supreme Court of Victoria, described the plan of the group as foredoomed to failure, saying that the ill-suited vessel the group had purchased and their lack of serious boating experience made it hard to imagine that they would have made it very far past the breakers off the far north of Queensland coast.
The applicant’s request for an ICO in respect of Mr Kaya was not made until 6 May 2020, that is, two days before his release from prison. By the agreement of the parties, the request was listed for hearing today.
The request is supported by a substantial affidavit by the applicant, Ms Booth, who holds the rank of Commander in the AFP, her substantive position being Commander, Counter Terrorism Operations South. Initially, Mr Kaya opposed the making of the ICO, and it was anticipated that there would be a hearing, including cross-examination of Ms Booth, today. However, this morning Mr Kaya, who is represented by counsel including Senior Counsel, indicated that he did not oppose the ICO being made and that he had reached agreement with Ms Booth as to the terms of the order which it would be appropriate for the Court to make.
Section 104.4(1) of the Criminal Code sets out the matters about which the Court must be satisfied before making an ICO:
(1)The issuing court may make an order under this section in relation to the person, but only if:
(a)the senior AFP member has requested it in accordance with section 104.3; and
(b)the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i)that making the order would substantially assist in preventing a terrorist act; or
(ii)that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
(iii)that the person has engaged in a hostile activity in a foreign country; or
(iv)that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v)that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi)that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(vii)that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
(d)the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii)preventing the provision of support for or the facilitation of a terrorist act; or
(iii)preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
As is apparent, s 104.4(1) requires the Court to be satisfied of four matters:
(a)the request is made by a senior AFP member and has been made in accordance with s 104.3 (s 104.4(1)(a));
(b)the Court has received and considered such further information as it has required (s 104.4(1)(b));
(c)that at least one of the circumstances specified in subs (1)(c) exists; and
(d)that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary, and reasonably appropriate and adapted, for the purpose of achieving at least one of the effects specified in subs (1)(d).
Section 104.5(3) lists 12 different forms of obligations, prohibitions and restrictions which the Court may impose on a person by an ICO. The maximum period for which a control order may be in force is 12 months from the making of the ICO (s 104.5(1)(f)).
Section 104.4(2) elaborates on subs (1)(d) by requiring the Court to take into account as a paramount consideration in all cases the objectives of Div 104 stated in s 104.1 and, as an additional consideration applicable in this case, the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
Looked at generally, a court asked to make an ICO is required, once satisfied of the first three elements to which section 104.4, sub (1) refers, to make an evaluation of the obligations, prohibitions and restrictions which should be imposed having regard to what is reasonably necessary, reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a terrorist act or preventing the provision of support for or the facilitation of the engagement in a hostile act in a foreign country.
Counsel for Mr Kaya in this case accepted that Ms Booth is a senior AFP member for the purposes of s 104.4(1)(a) and that she has made her request in accordance with s 104.3, including by obtaining the Ministerial consent required by s 104.2. Counsel also accepted that the offence of which Mr Kaya has been convicted is an offence relating to terrorism for the purposes of s 104.4(1)(c)(iv) and that Mr Kaya has facilitated engagement in a hostile activity in a foreign country. Section 104.4(1)(b) is also satisfied because the Court did not require Ms Booth to provide further information.
The controls sought by Ms Booth as the interim controls are extensive. Some 20 different controls are sought, and they are of diverse kinds.
The Court’s satisfaction that those controls are reasonably necessary and reasonably appropriate and adapted for the purposes listed in s 104.4(d) is more easily obtained in this case by its knowledge that Mr Kaya has had the benefit of legal advice from counsel, including Senior Counsel. The Court also takes into account that it is the contemplation of both parties that the ICO which the Court is asked to make today is in the nature of an interim order, with the expectation that there may be a much more substantive hearing at the so-called confirmation hearing required by Div 104 of the Criminal Code. The Court may expect that at that hearing the question of the necessity, appropriateness and adaption of the particular controls sought by Ms Booth will be subject to greater scrutiny.
For today’s purpose and having regard, in particular, to the consent of Mr Kaya, I am satisfied that the controls sought are reasonably necessary, reasonably appropriate and adapted for the purposes set out in s 104.4(1)(d). I reach that state of satisfaction having regard, in particular, to the nature of the offence committed by Mr Kaya, the period of time over which the conduct constituting that offence occurred, the information which Mr Kaya acquired in the course of committing the offence, the prospect that Mr Kaya may continue to be subject to the malign influence of others, and the indications that he is, at least to some extent, in continuing contact with other persons about whom there are concerns with respect to terrorist or security issues.
I will make an order pursuant to s 104.4 of the Criminal Code.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 3 June 2020
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